1. Today's decision by the Court of Appeal is another high-watermark case on Constitutional law in Malaysia. It not only proves the point that I have been trying to make all along, but has placed Malaysian Constitutional jurisprudence at par with other Commonwealth countries, to wit a few, Australia, Canada and England itself, that the constitutional logic of the Constitution of Perak and the democratic imperative upon which the Constitution of Perak is based on the following thesis that "If a Mentri Besar ceases to command the confidence of the majority of the Assembly, that officer has lost his democratic justification for remaining in power since he no longer has the confidence of a majority of the representatives of the people". The case of Adegbenro v Akintola [1963] AC 614, at 628, per Viscount Radcliffe succintly states: "It recognises also one other principle that has come to be accepted in the United Kingdom: that, subject to questions as to the right of dissolution adn appeal to the electorate, a Prime Minister ought not to remain in office as such once it has been established that he has ceased to command the support of a majority of the House". What it means, in layman's term is simply this, that YB Dato' Seri Ir Nizar should have resigned the day he met HRH the Sultan of Perak on 4th February 2009. His defiance on that day has dragged the constitutional crisis to where it was until the Court of Appeal decided today!2. The powers to grant a dissolution of Dewan Negeri Perak and to appoint the Mentri Besar and State Executive Council members are among the prerogatives of HRH the Sultan of Perak. Consensus amongst parliamentarians and commentators is that there are instances in which the Monarch may refuse to grant a dissolution, especially to a minority government. For example, minority Labour Government of Ramsay McDonald requested for a dissolution, Herbert Asquith (Prime Minister between 1908 and 1916) stated in The Times for 19 december 1923, which was quoted with approval in Marshall, Constitutional Conventions (1986), at 38: "The Crown is not bound to take the advice of a particular minister to put its subjects to tumult an dturmoil of a series of general elections so long as it can find other ministers who are prepared to give it a trial. The notion that a Minister - a Minister who cannot command a majority on the House of Commons - is invested with the right to demand a dissolution is as subversive of constitutional usage as it would, in my opinion, be pernicious to the general and paramount interests of the nation at large." In Canada, Governor General, Lord Byng, in 1926 refused to grant a dissolution to Prime Minister King after the latter's government had lost the support of members of other parties who provided its majority. There was no vote of confidence, but Prime Minsiter King imemdiately resigned. Mr Meighen, the opposition leader was invited form a government (see Hogg, Constitutional Law of Canada, 5th ed, at 9-30). Thus, the lauds and cries for 'Bubar Dewan' by fellow opposition members of 'Pakatan Pembangkang' are not only pernicious but has created deep division amongst the people of Perak. In hindsight, if YB Dato' Seri Ir Nizar has conceeded defeat on 4th February 2009, the people of Perak would not have to pay the heavy price of confusion, humilation and frustration the culmination of all was the the 7th May 2009 sitting.

3. Article 16(6) of the Perak Constitution, in pith and substance, read in its entirety is far from ambiguous. It requires the Mentri Besar to tender his resignation of the Executive Council (which, by defintion, includes Mentri Besar) if he 'ceases to command the confidence of the majority of the members of the Legislative Assembly' otherwise, his position is vacated constitutionally. The case of Datuk (Datu) Amir Kahar bin Tun Datu Haji Mustapha v Tun Mohd Said bin Keruak & 8 ors [1995] 1 CLJ 184, is now given the salutary recognition by the Court of Appeal, thus distinguishing the case of Stephen Kalong Ningkan on facts. It says: "...that if the Chief Minsiter does not tender the resignation of the other members of his cabinet wherein the Cabinet is to be treated as dissolved under the circumstances envisaged by Article 7(1) of the Constitution, their offices are deemed to have been vacated." Precisely the point I have been making throughout my interviews, sessions and talks. In short, when YB Dato' Seri Ir Nizar 'defied' the advise by HRH the Sultan of Perak to tender the resignation of his EXCO, his position as Mentri Besar ipso facto being vacated on 4th February 2009.

4. There is no requirement for a formal vote of no confidence in order to determine whether a Mentri Besar or Premier has lost confidence of the Legislature. The case of Datuk (Datu) Amir Kahar, supra, is the leading authority when it states: "...may be found from other extraneous sources than to be confined to the votes taken in the Legislative Assembly provided that the extraneous sources are properly established...The expression of lost of confidence is not, therefore, confined to a vote taken in the Assembly but depending on the circumstances, which are capable of contributing sufficient evidence to indicate such a lack of confidence." Viscound Radcliffe, in Adegbenro, supra, at 629 stated: "in democratic politics speecehs or writings outside the House, party meetings, speeches or activities inside the House short of actual voting are all capable of contributing evidence to indicate what action this or that member has decided to take when and if he is called upon to vote in the House, and it appears to their Lordships somewhat unreal to try to draw a frim dividing line between votes and other demonstrations where the issue of 'support' is concerned." What it means, in plain English is this, a Mentri Besar may lose his confidence, in appropriate circumstances, outside Dewan and if that happens, it is mandatory (by the use of the word 'shall') upon him to do the gracious exit for the sake of constitutional principle, logic and common sense. Thus, YB Dato' Seri Ir Nizar should have tendered the resignation of his EXCO on 4th February 2009 which he defiantly refused to do so and clamoured, by intention or forced, with the mantras of 'Bubar Dewan'.

Dedication: This piece of literary, albeit, drafted by me in my quite room at my humble abode, is the manifestation of clear conscience, belief, persistence, dedication, unwavering support/teamwork, hardwork and sacrifice of all my BN Perak legal team members listed on my blog who had stood by me, in good and bad times, when all in the world (except our 'political masters', friends and families) are looking at us as the 'robbers of the majority voice of the people' BUT , we remained firm, united and with 1Voice when we entered each and every court rooms, meeting rooms and conference rooms. To this, I salute you all my friends for I am none other that your first among equals and nothing more!

I sincerely hope and pray that there will never be a time again when we have to travel afar, leaving all that we have in our life and practice, either in Malaysia or overseas for something which could have been avoided IF and only IF the non-BN Assemblymen believed and make-believe that the coveted positions as Assemblymen or Parliamentarians is nothing but the trust placed onto you to protect and uphold the Constitution above all.

28 comments:

Well written Datuk! As you know, people see what they want to see.. if they support Nizar, they only see the Stephen Kalong Ningkan case as being applicable whereas I have always felt that the Amir Kahar's case is the case in point that reflects the Perak Fiasco more aptly.

The oppposition, as always, has a selective memory. When Anwar was vying for the 16th Sept 2008 Govt, 'constitutional experts' loudly opined that YDPA can exercise his discretion in any way to ascertain if the PM has lost confidence in the Parliament (this was pre-empted to support any attempts if no Motion of No Confidence could be tabled).

It is shallow to think that due to the technicality of having to show the vote in an assembly, an MB who has clearly lost confidence of the majority, should remain in power. I too thought that Art 16(6) was clear to say that if the dissolution was not consented to, then the MB shall resign.

Just another thought, s.47 of the Interpretation Act (if i'm not mistaken) also states that where in any legislation there is a power to appoint, then it inherently gives that authority, the power to remove. I think it also applies in this case.

Now that the Court of Appeal has decided in favour of BN, they are bound to say that there is bias, prejudice, etc. When the court decided in their favour, no such cries are being made.. again, selective!

i pity malaysians for allowing themselves to be duped into thinking that they are 'mature' etc. Far from it, a majority of the rakyat only follows sentiments and thrive on controversies. They love to listen to gossips and fitnah, but when the truth is being told, they are quick to rebuff.

If your are honest and truthful in what you say, please do let me know which part of the analysis above you are not agreable. By just saying one is dumb and a disgrace to profession is nothing but saying its wrong but what went wrong you failed to highlight.

Thank you for taking time to read my analysis. I appreciate that. Also, I take note and agree with you additional comments on s47 Intrepretation Acts 1948 and 1967.

I have also been informed through sources that some say its too early for me to dedicate/say thank you to my team, but I always believe, a leader must be the last to take credit and the first to be blamed. I must say that I entirely agree with your statement that 'lack of maturity' or 'superficiality' of some quarters of Malaysian especially when faced with the grand delusion of 16th September. That was permissible but Perak is not! In surmise, its hypocrisy.

There are limited jurisprudence on this issue. That was confirmed by leading lawyer in England when we last met him. However, if you are looking for books on general topic on Constitutional Law, there are a few: (1) by Sheridan & Grooves, Constitutional Law in Malaysia and Singapore; (2) RH Hickling's commentaries (cannot remember the topic); (3) HRH Sultan Azlan Shah's book/compilation of speeches.Also, if you want to studt the effect of anti-hopping law, then the case of Nordin Salleh & Anor v Dewan Undangan Negeri Kelantan (1990s), a supreme court case in Malaysia is very helpful.I respect you stand but I do hope others respect mine.Thank you.

Thank you for asking that question. Insya-Allah, I will post it on my blog tomorrow. Suffice here, if I can say, that Speaker is not immune (alhough his interpretation on any standing orders or any motion relating thereto is final, but is always subject to higher authority ie Dewan or Assembly).Thanks.

Hafarizam Harun, your tenuous grasp of the English language simply appalls. I detect serious grammatical lapses in EVERY sentence you utter. In view of this severe handicap, I can understand why you have no other professional option than to serve as Umno's legal adviser - even though your actions may well result in the irredeemable loss of your ethical and moral sense. I for one would certainly not wish to be in your shoes, no matter how much they cost. You, sir, are to be ranked amongst the living condemned. However, you are not overly advanced in years and may still have time to repent. As a parting gesture, may I wish you a spontaneous realization of the ignoble role you have willingly played in Najib Razak's sleazy plot to reinforce his political standing within Umno - at the expense of all Perakians and the beginnings of participatory democracy in Malaysia - and may that realization lead you to publicly apologize for having been party to the grisly murder of all decent Malaysians' hopes for a peaceful regime change.

If my English is the problem here, I accept openly but it would appear that you are not commenting on the substance and concerned more on the form. For your information, participatory democracy comes in twofold, 1st being participative and 2nd is being responsible for it. I beg to differ that YAB Dato' Sri Najib Razak is plotting to reinforce his political standing in UMNO. He is already de jure the President of UMNO.On the other hand, Dato' Seri Anwar Ibrahim is only interested in becoming the next Prime Minister at all costs. Please do not forget the loads of money brought in to Sabah to overthrow PBS Govt; the political maneuvering in bringing down the late Tun Ghaffar Baba; the 'pink forms' in 1996; the IMF model during the 1998 crisis; and finally the grandeur delusion of 16th September 2009. Just pause and reflect who is the Chief perpetrator??Bet that as it may, I am not interested into such political polemics of your sort and shall not go down that same route as you have taken. Your personal attacks will be treated with the contempt that it deserves.

To quote you, Hafarizam: Dato' Seri Anwar Ibrahim is only interested in becoming the next Prime Minister at all costs. That Anwar has long aimed for the top job in the civil service is no secret. But "at all costs"? Surely, that qualifier is more accurately associated with Najib's unseemly anointment to the PM's post by dint of his being the unchallenged Umno president. Are you quite unaware that at least 70% of the electorate DREADED the thought of "a scandal-laden party hack" (Asia Sentinel's epithet, not mine, but fairly apt) ascending to power with so many burning issues unresolved? Leaving aside the clear trail that leads directly to his doorstep (certainly as far as the office of his chief security aide DSP Musa Safri) with regard to the outrageous abduction and grisly execution of "that Mongolian woman," eight years as defence minister adds up to a reeking pile of shady arms deals that can't be conveniently swept under the carpet (unless you're the scion of an Umno warlord, of course). Thank you, at least, for the courtesy of publishing my comment and responding to it, even if only with "the contempt it deserves."

While it seems that you might be right on the law, I think you should bear in mind that at the end of the day, politics is about PERCEPTION.

In my view, in politics and government, it's not so much about whether you are right in law, but whether the people support you. So, even if Pakatan is wrong in LAW, the FACT is, the majority of the people of Perak don't like BN - for whatever reason.

The people just want a say on who should be their government - to vote again - they just don't like the government being changed just like that, by ONE person's opinion (HRH Sultan of Perak) about whether the MB has lost confidence of the majority.

I personally disagree with the English case which says that you can gather 'evidence' on whether the MB has lost the confidence just by looking at speeches etc made OUTSIDE of the Parliament.

If that is what an ADUN believes (no longer supports the MB) then let the DUN tell the people, IN THE DUN. After all, DUNs are accountable to the PEOPLE, NOT to the Sultan.

To me, speaking POLITICALLY rather than legally, it was a 'blunder' by BN to not insist on a DUN vote of no confidence. That's all it takes to win both the power and the people's perception! But for some reason, BN decided to skip that step - maybe they know that the Speaker will not allow it. But sorry to say, BN is reaping what BN has 'sowed' - just like what Pandikar Amin (Parliament's Speaker) was doing when Pakatan asked to table a vote of no confidence against Tun Abdullah last year, Sivakumar could have done the same - by delaying and finding excuses to reject that vote...

Just because there is no express provision for a vote of no confidence doesnt mean that it cannot or should not be done. In the UK, from what I understand, there is NO written constitution, so does that mean that they cannot do ANYTHING??

I think you should know that there is something called 'constitutional conventions', which is followed by the politicians on both sides in UK for hundreds of years even though they were never written down. e.g. Collective Cabinet responsibility (if a decision has been made by the Cabinet, ALL ministers of that Cabinet are collectively responsible for it, even though he or she personally disagreed with the decision. The Minister should resign if disagrees - just like how they do it in UK when a Minister resigned from Tony Blair government because disagreeing with the Iraq war, etc), and a Parliamentary vote of no confidence is 1 example of constitutional conventions which are never written down.

To come back, I think BN should understand that this is NO LONGER a 'legal' problem - it's now a POLITICAL problem, and it has grown BIGGER than just a Perak problem. People everywhere in Malaysia feel that BN refuses to face a new election because they are afraid to lose, and there is only 1 description for those who want to gain power BUT DONT want to face election: POWER GRABBER.

You might have the 'law' on your side, but at the end of the day, the people don't vote according to what the law says. In fact, they'll vote to CHANGE the law...

I hope BN top leadership understands that to continue to hold on to Perak like that - based on law or otherwise - is making BN increasingly unpopular all across Malaysia, making the jobs of BN supporters like me very difficult...